HallettEmployment Law Services Ltd

Employment references- guidance from ACAS

31st October 2018

A topic that often causes employers problems is how to deal with requests for employment references.

Many myths abound about employment references. We often hear people claim that you cannot say something bad about a person in an employment reference. Many employers do not give references because they are frightened by the risks of being sued for saying something wrong about the individual concerned. Many employers believe that the contents of an employment reference remain confidential forever, and cannot be disclosed to the person that the reference is about. Some employers use prescribed forms and questions in seeking an employment reference, whereas other employers leave it all up to the writer.

With many myths existing about references, and hugely varying approaches being taken by different employers, it is perhaps no wonder that this topic causes problems for many businesses and individuals.

Tom Neil, an ACAS Senior Adviser has said that:-

“The job market can be very competitive so it is vitally important for job applicants and employers to know what the legal requirements are around work references.”

As so many questions arise for employers in connection with giving and receiving employment references, a recent publication of guidance on employment references by ACAS is most welcome.

The guidance covers a range of important topics relating to employment references. This includes matters such as:-

- Whether or not employment references have to be provided.

- When is an employment references needed?

- What can an employment reference include? And

- Can an employer give a bad reference?

The full guidance is quite short, but makes easy and helpful reading.

The main principles are set out at the beginning, ie that there is usually no legal obligation to provide a reference (although in certain professions it is essential that references are given, such as those regulated by the Financial Services Authority), that employers that give employment references must ensure that the references are fair and accurate, and that the employers must handle references fairly and consistently.

The guidance recommends that employers use a policy to assist and help them deal with references requests fairly and consistently. This is a practical and common-sense approach to this topic, but one which is too often neglected- as a job that stays on the “to do” list. A good policy will give managers guidance on the processes of requesting and receiving references, and guidance on the information that they can provide in response to a request for an employment reference.

Obviously certain basic details are always expected from an organisation giving a reference, such as the person’s job title with them, and their dates of employment. There are no hard and fast rules on what else should be asked. We do however caution employers from asking questions which are irrelevant to the tasks of the role to be filled, and against asking discriminatory questions, or ones that seek details of irrelevant personal information.

As mentioned earlier, many employers and individuals believe that employment references cannot include anything critical of the individual. The case law has long stressed that if an employer gives a reference, that reference should be a true and accurate reflection of the individual. It is not expected to be a comprehensive appraisal of the individual, but when opinions are being provided they need to be ones which can be supported by facts.

Sometimes companies and potential employers will ask set questions. Clearly most employers will try to answer those questions. If you do answer set questions, make sure that they are answered accurately and truthfully. There will often be occasions when the set questions that have been asked are not entirely relevant to either the position in which you had employed the individual. Our view is that in those cases the best way to deal with this situation is to provide your own reference, dealing with the details that you can genuinely comment on, and pointing out that you are unable to comment on any areas that do not relate to the tasks or work or experience you had with the individual in question. Our experience is that other employers may regard you as being deliberately obstructive or un-cooperative if you simply ignore a reference request. It is better to respond with your won form of reference rather than to ignore a request that asks set questions that you feel uncomfortable with or which do not really match up with the range of tasks that the individual did in their work for your business.

It is important that any job application makes it clear from the outset as to exactly when an employment reference will be sought. We are aware that there are different customs in different industries and professions about the timing of a reference request. In the teaching profession for example it is customary for references to be sought before the individual is called to an interview. However, in most jobs and professions the request will only come after an interview or first sift of the applications. It should be noted that quite often an individual will not want their current employer to know that they are looking elsewhere for a new job, as they may feel that their current employer may regard that conduct as disloyal. Potential new employers should give thought to the possibility of making any job offer subject to the receipt of satisfactory reference(s), or use a probationary period for a new starter if they have any concerns about their suitability for a role. Sometimes, if you are unsure about how to respond to a reference request about an employee, it will be helpful to speak to the employee concerned to sort out any areas of concern or worry.

Do note that under data protection law, individuals do have the ability to request and receive employment references that have been written about them. So, employers need to think carefully about how to respond to any employment reference request, and stick to providing accurate information that provides a fair reflection of the individual.

The full ACAS guidance can be found on their website.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.